Decisions for you: 25th Amendment
Lesson Activity by Hank Bitten, NJCSS Executive Director
It is important for students to understand the constitutional procedures for the transfer of power in the event of the death or physical or mental incapacity of the president. The 25th amendment has been invoked three times since its ratification in 1967. Section 2 was invoked twice, and Section 3 was invoked once in 1981.
1973 Resignation of V.P. Spiro Agnew (R) when both houses approved Gerald Ford (R) as Vice-President
1974 Resignation of President Richard Nixon when V.P. Gerald Ford (R) became President and both houses approved Nelson Rockefeller (R) as Vice-President.
1981 Surgery for President Ronald Reagan following a gunshot wound.
Essential Question: Does the 25th Amendment provide a transition of presidential power from one person to another without being challenged?
Read Section 2 of the 25th Amendment and discuss the following scenarios:
Section 2
“Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”
Scenario A: President Trump passes unexpectedly, and Vice-President J.D. Vance becomes President under Section 1 of the 25th Amendment.
Who should President Vance nominate as the new Vice-President? (Member of Congress, Governor, Cabinet Secretary, someone from the media, business executive, etc.)
- Speaker of the House Mike Johnson (Since Rep. Johnson is not able to vote for himself, the Republican majority is 219 with 218 votes required for a majority).
- If Rep. Mike is not elected by the House, would the election of someone from the Democratic Party be accepted?
119th Congress, Senate (2025–2027) 51 votes needed for a majority.
Majority Party: Republicans (53 seats)
Minority Party: Democrats (45 seats)
Other Parties: 2 Independents
Total Seats: 100
119th Congress, House (2025–2027) 218 votes needed for a majority.
Majority Party: Republicans (220 seats)
Minority Party: Democrats (215 seats)
Other Parties: 2 Independents (Caucus with Democrats)
Total Seats: 435
Scenario B: President Trump passes unexpectedly between the 2026 Midterm Elections and the meeting of the new Congress on January 3, 2027.and Vice-President J.D. Vance becomes President under Section 1 of the 25th Amendment.
- Who should President Vance nominate as the new Vice-President if the Democratic Party controls either the House or the Senate?
- Should the current Congress (House and Senate) that was meeting at the time the Vice-President became President continue until a Vice-President was selected or should the newly elected Congress vote on the candidate?
Scenario C: Who should President Vance nominate as the new Vice-President if the Democratic Party controls both the House and the Senate?
- Is there a Republican who would be acceptable to a majority of Democratic representatives in both houses?
- What would happen if President Vance refused to nominate a Vice-President?
- If we do not have a Vice-President and if the Speaker of the House is a Democrat but the Senate Majority Leader a Republican, should the person next in line to succession as president be the Speaker of the House as current law states or should the presidency go to the Majority Leader in the Senate who is from the same political party as the President?
Scenario D: If there is no Vice-President, would it be possible under Section 4 to declare that President Vance was unable to discharge the powers and duties of his office? (in the event of a physical, emotional, or mental incapacity.)
Section 4:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
- What ‘other body’ should Congress select?
- If the Speaker of the House is a Democrat and the person next in line to become Acting President, could this be challenged if the Majority Leader in the Senate was a Republican (same party as President Vance)?
- If a Democrat becomes Acting President, could this person fire all members of the Vance Cabinet and replace them with new officers consistent with his/her political party? (Democrat) Would this be challenged?
“In a purely legal sense, as Acting President, the Vice President can employ all the powers and tools of the office of the president. Historians have characterized the Acting President as playing “a critical role as decisionmaker,” and “tak[ing] care of the day-to-day business” of the White House. The Acting President has the constitutional authority to “move the troops, report on the State of the Union, propose a new budget, send judicial nominees to the Senate for confirmation, remove the secretary of the treasury, do virtually all the things that presidents do. He might even prepare to control his national party apparatus and to secure its presidential nomination.” (Page 44)
“Senator Bayh responded by noting that the Vice President does “not have the office of President but that of Acting President. He does not get the full powers and duties of the office of President unabated. He is Acting President.”
Setting this symbolic distinction aside, the Acting President would be constitutionally empowered to conduct the same acts as the President. In the floor debate in the Senate, for instance, Senator Bayh expressed his belief that the Vice President acting as President would be able to fire and appoint cabinet officials. When Senator Hart expressed concern that a Vice President acting as President would remove cabinet members to “consolidate[] his position” as Acting President, Senator Bayh admitted that this concern was legitimate, but declared, “we do not want a Vice President who is acting in good cause, say, for example, in a 3-year term of office, being unable to reappoint Cabinet members who may have died or resigned.” (Page 71)
Scenario 5: President Vance continually frustrates both Houses of Congress with a nomination for Vice-President.
According to the following statement from the Yale Law Reader’s Guide, could President Vance be impeached? From Yale University
“Depending on the circumstances, actions taken by the President or other officials to frustrate the Twenty-Fifth Amendment process may constitute an impeachable offense.” (page 8)
The 25th Amendment
Section 1
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Interpretations
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